Q&A with Courtney Warmington

The Oklahoman
Dec. 1, 2010

Firing Over Social Network Use Raises Issue of Workers' Rights

Q: The National Labor Relations Board alleges a Connecticut woman was wrongfully terminated after posting disparaging remarks about her boss on Facebook. What are the applicable labor laws with regard to protected speech?
A: The law at issue in this particular case is the National Labor Relations Act or “NLRA.” Many people believe that this law only applies to companies that have a union. However, because parts of the act give protection to employees before a union is ever formed, it applies to most every employer in the private sector.

Q: Can employers prohibit employees from making negative comments about co-workers or supervisors on social sites?
A: Yes. However, there are situations where the speech goes beyond just being negative or offensive and may be entitled to protection. For example, the NLRA protects employees' rights to engage in protected concerted activities, which are usually groups of employees attempting to improve working conditions, such as wages and benefits. If two or more employees begin commenting on a social networking site about how they want better pay or benefits, it can be argued that the speech was protected.

Q: How can employers protect themselves against these situations?
A: The first line of defense is a policy that explains what the company expects of its employees as it relates to social networking. Many problems can be avoided by simply educating employees to be mindful that any activity outside the workplace — social networking included — can have consequences when it violates company policy and/or reflects poorly on the company. Second, a company must carefully evaluate the speech at issue before taking any disciplinary action. The NLRA is not the only law that may provide some protection. Speech may also be protected under “whistle-blower” laws, off-duty conduct laws or civil rights laws, just to name a few. Governmental employers must also consider First Amendment issues.

Q: What is the potential impact on national labor law if this case is decided in favor of the employee?
A: The case is being watched closely because it is the first complaint to be issued by the NLRB relating to activities on Facebook. It is also of great interest because many of the reported comments at issue sounded like nothing more than “bad-mouthing” of the employee's supervisor and the company itself. The key question is where the line will ultimately be drawn between protected versus unprotected speech.

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